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United States v. Billups

United States Court of Appeals, Fifth Circuit

March 8, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
CURTIS BILLUPS, Defendant - Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge:

         Appellant-Defendant Curtis Billups appeals two aspects of his sentence. First, he appeals the district court's application of a two-level pseudocount enhancement pursuant to U.S.S.G. § 2G1.3(d)(1). Second, he appeals the district court's imposition of a mental health treatment condition as part of his supervised release. For the reasons set out below, we AFFIRM the district court's application of the pseudocount enhancement, VACATE the mental health treatment condition, and REMAND for resentencing in light of this opinion.[1]

         I.

         On March 24, 2015, a federal agent posing as the father of two girls, ages 12 and 14, posted an online advertisement seeking an adult male willing to engage in various sex acts with both of his daughters and willing to let him watch. Curtis Billups responded to the advertisement, and the two agreed to meet. When Billups arrived at the meeting, he was arrested. At trial, he was convicted of one count of enticing a minor to engage in unlawful sexual conduct, in violation of 18 U.S.C. § 2422(b).

         II.

         After Billups was convicted, a United States Probation Officer prepared his presentence investigation report ("PSR"), which the district court adopted without alteration. The PSR treated Billups as if he was convicted of two counts of enticing a minor to engage in unlawful sexual conduct, even though he was only convicted of one. This second count, known as a pseudocount, reflected the fact that Billups sought to engage in sexual conduct with two fictitious minors. It also resulted in Billups receiving a two-level pseudocount enhancement pursuant to U.S.S.G. § 2G1.3(d)(1). Billups did not object to this enhancement in the district court, but now does. "Our review, therefore, is for plain error."[2]

         To prevail on plain error review, Billups must establish: "(1) there was an error; (2) the error was clear and obvious; and (3) the error affected [his] substantial rights. If each of these conditions is satisfied, we may exercise our discretion to correct the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."[3]

         U.S.S.G. § 2G1.3(d)(1) states that if a sex offense involves "more than one minor, [a pseudocount enhancement] shall be applied [pursuant to U.S.S.G. § 3D1.4] as if the . . . enticement . . . of each victim [constitutes] a separate count of conviction." The Sentencing Commission has made clear - in application note 1 - that undercover officers posing as minors are minors for purposes of § 2G1.3(d)(1).[4] The Sentencing Commission has also made clear - in application note 6 - that if a district court finds that a defendant sought to entice more than one fictitious minor, the pseudocount enhancement shall apply.[5]

         Billups argues that that we should disregard application note 6 because it is inconsistent with the Guideline text. When an application note is inconsistent with the Guideline text, we "follow the plain language of the Guideline alone."[6] Billups argues that, under § 2G1.3(d)(1), a pseudocount enhancement applies only to victims, who are real people, not fictitious minors. His argument relies upon two rules of statutory construction. First, the Sentencing Commission did not define the term "victim" as used in § 2G1.3(d)(1), and "in the absence of a statutory definition, we give terms their ordinary meaning."[7] Second, when the Sentencing Commission uses two terms in a single provision - in this case, victim and minor - we assume that "it intended [for] each . . . to have a particular, nonsuperfluous meaning."[8]

         "It is well established that our interpretation of the Sentencing Guidelines is subject to the ordinary rules of statutory construction."[9]However, it is also well established that the rules of statutory construction may not be "employed to eviscerate manifest legislative intent."[10]

         Application note 6 reflects "the [manifest] intent of the United States Sentencing Commission."[11] It unequivocally states that if a district court finds that a defendant sought to entice more than one fictitious minor, the pseudocount enhancement shall apply. "[T]he enhancement is directed at the defendant's intent, rather than any actual harm caused to ...


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